Indian Securities Market: Legal Framework Overview

Report
Indian Securities Market:
Legal Framework Overview
Nihar Mody
PLATINUM PARTNERS, INDIA
29 May 2012
Overview
 Modernisation and growth of the Indian securities market
 Key statutes
 Regulatory framework
 Investigatory and judicial powers
Slide 1
Modernisation and Growth of the Indian
Securities Market
Modernisation of Indian Securities Market
 Pre 1992:
 Underdeveloped securities markets
 Growth limited by various factors:
 pricing controls
 excessive governmental control
 restrictions on issuing shares at a premium
 low liquidity
 no specialised regulator
 lack of required regulations
Slide 3
The Modern Indian Securities Market
 Post 1992:
 Securities and Exchange Board of India (SEBI) incorporated
and given statutory powers
 series of reforms introduced
 administered pricing system phased out
 institutional framework established
 technological infrastructure upgraded
 efficient and more transparent market practices introduced
 regulatory framework introduced
Slide 4
Growth of the Indian Securities Market
 1992-93: 2,861 companies listed on BSE, average daily turnover
of INR 2.38bn (US$ 42.97mn)
 2009-10: 4,975 companies listed on BSE, average daily turnover
of INR 56.51bn (US$ 1.02bn) (i.e. 23.74x growth since 1992-93)
 BSE is the exchange with the maximum number of listed
companies in the world (5,112 companies listed in the equity
segment). The next highest is the TMX group in Canada (3,945
listed companies)
 The average size of a capital issue (including rights and public
issues) has risen from INR 213.23mn (US$ 3.85mn) in 1993-94
to INR 7.43bn (US$ 134mn) in 2010-11
Source: SEBI, World Federation of Exchanges
Slide 5
Growth of the Indian Securities Market
 While in 1994-95, more than 97% of the capital issues were
small sized (less than INR 1bn in size), less than 3% of the
capital issues made in 2010-11 were small sized
 In April 1993 the market cap of all companies listed on BSE was
INR 1.75tn (US$ 31.62bn) and when NSE started operations in
November 1994 the market cap of all companies permitted to
trade on it was INR 2.93tn (US$ 52.88bn) – currently the market
cap for both exchanges is around the US$ 1tn mark
Source: SEBI, World Federation of Exchanges
Slide 6
Key Statutes and Regulations
Key Statutes
 SEBI Act, 1992
 Incorporates SEBI and vests it with statutory powers
 Primary authority for regulating the Indian securities markets
 Performs executive, legislative and quasi-judicial functions
 Power to register and regulate working of stock exchanges
and other intermediaries involved in the securities markets
 Power to protect interests of investors through ensuring
prompt disclosures, preventing market manipulation, unfair
trade practices, insider trading, etc.
 Power to issue show cause notices, conduct inquiries and
investigations, hold hearings, prosecute and levy penalties
Slide 8
Key Statutes
 SEBI has framed detailed regulations covering a wide
range:
 Issue of Capital (Public, Rights, Bonus) and Disclosures
 Takeovers
 Insider Trading (including codes of conduct)
 Market Manipulation
 Unfair Trade Practices
 Stock-brokers
 Merchant bankers
 Underwriters
Slide 9
Key Statutes
 Foreign Institutional Investors
 Portfolio Managers
 Investment Funds
 Custodians
 Depositories
 Buy-backs by listed companies
 Mutual Funds & other Collective Investment Schemes
 Credit rating agencies
 Debenture trustees ..................................... and several others
Slide 10
Key Statutes
 Statutes are periodically reviewed and updated
 New Takeover Regulations in 2011:
 Mandatory open offer trigger increased from 15% to 25%
 Minimum offer size increased from 20% to 26%
 “control” trigger for mandatory open offer retained
 indirect ‘chain’ acquisition principle clarified
 Non-compete fee and other ‘indirect’ payments to exiting
promoters now part of open offer price
Slide 11
Key Statutes
 Depositories Act, 1996
 Securities held and transferred in dematerialised (electronic) form
 Clearing and settlement processes on stock exchanges simplified
and speedier
 Greater convenience to investors and brokers– speed, ‘bad
deliveries’, no dealing with and storing heaps of paper
 Lower costs (no stamp duty) in securities trading
 National Securities Depository Limited was inaugurated in November
1996 (77.95bn dematerialised shares of 6,801 companies as of
2009-10*)
 Central Depository Services (India) Limited started operations in July
1999 (351.14bn dematerialised shares of 8,124 companies as of
2009-10*)
*Source: SEBI Handbook of Statistics 2010
Slide 12
Key Statutes
 Securities Contracts (Regulation) Act, 1956
 Gives the government (now SEBI) regulatory jurisdiction and
supervisory control over stock exchanges
 Regulates contracts relating to trading in securities
 Requires companies to comply with listing agreement
 Companies Act, 1956
 The primary statute dealing with Indian company law
 Regulates the issue, allotment and transfer of securities, and
aspects relating to company management
 Also specifies standards of disclosure to be made in public
issues of capital
Slide 13
Other Statutes
 Prevention of Money Laundering Act, 2002
 Requires securities market intermediaries to maintain records of
transactions and verify and maintain records of client identities
 Indian Contract Act, 1872
 Codifies the law of contract in India, deals with valid, void and
voidable contracts, manner of entering into, performing and enforcing
contracts
 Indian Penal Code, 1860
 Some securities related actions can also result in criminal offences,
such as breach of trust, cheating and forgery
 Foreign Exchange Management Act, 1999
 Relevant for non-residents investing in Indian securities– regulates
types of investors, manner of investing, purchase and sale price, etc.
Slide 14
Regulatory Framework
Overview of Different Regulatory Authorities
GOVERNMENT OF INDIA
MINISTRY OF
FINANCE
MINISTRY OF
CORPORATE
AFFAIRS
MINISTRY OF
COMMERCE &
INDUSTRY
DEPARTMENT
OF ECONOMIC
AFFAIRS
REGISTRAR
FIPB
SEBI
OF
COMPANIES
DEPARTMENT OF
INDUSTRIAL
POLICY &
PROMOTION
RBI
Key Regulatory Authorities
 Department of Economic Affairs
 Formulates and implements policies relating to the securities
market, including under the Securities Contracts (Regulation)
Act, 1957
 Ministry of Corporate Affairs
 Responsible for administration of the Companies Act, 1956
 Operates the Investor Protection Cell which provides a
mechanism for facilitating the redress of investor grievances
Slide 17
Key Regulatory Authorities
 Reserve Bank of India
 The monetary authority of India
 Frames policies relating to movement of foreign exchange /
investments by non resident investors
 FIPB
 Considers and approves foreign direct investment proposals
that do not fall under the automatic route for foreign
investment
Slide 18
Scope of Key Regulatory Authorities
SEBI
STOCK
CLEARING
EXCHANGES
CORPORATIONS
BROKER
DEALERS
MERCHANT
BANKERS
RBI
DEPOSITORIES
DEPOSITORY
PARTICIPANTS
MUTUAL
FUNDS
REGISTRAR &
TRANSFER
AGENTS
BANKS
PRIMARY
DEALERS
Investigative and Judicial Powers
Some SEBI Actions
 Power to investigate into and adjudicate offences and violations
of the SEBI Act and rules and regulations made thereunder
 Power to impose heavy monetary penalties, restrain offenders
from accessing the markets, suspend trading in securities
 Mechanism for compounding of offences under investigation by
paying a settlement amount
 In 2010-11, SEBI received 359 compounding applications,
settled 185 through consent orders, and realised INR 729.79mn
(US$ 13.18mn) through settlement / compounding charges (INR
1.905bn* (US$ 34.4mn) since the scheme was launched (200708))
 Failure to cooperate with an investigation launched by SEBI is
punishable with fine and / or imprisonment
*Source: SEBI Annual Report 2010-11
Slide 21
Judicial Process
 Securities Appellate Tribunal (SAT) / Supreme Court
 SEBI orders can be appealed before the SAT
 Appeals from SAT orders lie to the Supreme Court of India
 Companies Act
 Matters arising under the Companies Act are principally heard
by the Company Law Board
 Appeals from Company Law Board orders lie to the relevant
high court
Slide 22
SEBI Investigations
 In 2010-11:
 SEBI took up 104 new investigations (71 in the previous year),
of which 56 related to market manipulation, 6 related to
manipulation of capital issues, 28 related to insider trading and
4 related to takeovers
 SEBI completed 82 ongoing investigations (74 in the previous
year), of which 51 related to market manipulation, 2 related to
manipulation of capital issues, 15 related to insider trading and
4 related to takeovers
 SEBI issued 389 regulatory orders, of which 268 were
prohibitive directions against intermediaries and nonintermediaries, 5 intermediaries licenses were cancelled, 36
intermediaries were suspended and 17 were issued warnings.
The remaining 63 actions were by way of administrative
warnings and observations of deficiency
Source: SEBI Annual Report 2010-11
Slide 23
Examples of SEBI Investigations
 Roopalben Panchal case
 A scam which came to light in 2005, which involved creation of
thousands of demat accounts which were controlled by one
person, and which were then used to make share applications
in IPOs
 Involved several IPOs between 2003-2005, and aimed at
sidestepping SEBI restrictions on the number of shares that
could be applied for by retail investors in an IPO
Slide 24
Examples of SEBI Investigations
 Mathew Easow case
 An investment adviser was accused of market manipulation
and
unfair
trade
practices
for
allegedly
issuing
recommendations to investors and taking opposite trading
positions with a view to profiting from such misleads
 SEBI’s order against the accused was overturned by SAT
Slide 25
Thank You
© Platinum Partners 2012
This material is for general information only and is not intended to provide legal advice.
Slide 26

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